CHILDREN CUSTODY IN THE US LAW

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This article is written by Anshika Srivastava, an intern under Legal Vidhiya.

With respect to child custody a woman has no right to a unilateral choice that affects the rest of a man’s life any more than a man would have the right to a unilateral choice that affects the rest of a woman’s life.

—————Warren Farrell——————

INTRODUCTION

In today’s world divorce or the separation of a parents increased day by day and with this the person who affected the most is the children who is born out of marriage. The term child custody defines as the Custody is the legal right to take care of and raise a child. It is usually given to the child’s mother or father in the case of a split. All decisions pertaining to the child’s residence, health, studies, and religious upbringing should always be made by the parents of children. But all these issues might become controversial if couples break up. Child custody laws and the court become engaged when a child’s upbringing and custody are in question. Consider the following definition of child custody as you investigate this idea.

In the U.S., judges and lawyers may use terms like “parenting time” instead of “custody” and “visitation. “The newer, alternative terminology tries to get rid of the difference between “custodial” and “noncustodial” parents by making schedules that meet the needs of the children’s growth. This helps people focus more on what is best for the children.[4] For example, young children may need to see their parents more often and for shorter amounts of time, while older children and teens may be able to handle and even want to see each parent less often and for longer amounts of time.

BACKGROUND

History And Evolution of The Child Custody

Divorce was taboo in the early 1900s. As women got more rights and freedoms, the number of divorces went through the roof. Over time, the rules about divorce, especially about child custody and visitation, have changed. Here, we’ll look at the past of child custody in the US. American colonists were ruled by English common law. When the parents split up, the father got custody. During the Industrial Revolution, fathers left their farms to find work. The kids were left with their moms. This change in the family made it harder to decide who would get custody after a split.

In the 1800s, non-custodial parents often got visitor rights. The parent who did not have custody of the child could see the kid “at all reasonable times.” The schedule was made by the person who had custody. Visiting rights could be taken away if the family court thought the parent who did not have custody would hurt the kids.

The Tender Years Doctrine was later used by many U.S. states. In 1873, the British Parliament made a law that said children under 16 should live with their moms after their parents got a divorce. This rule was in effect for almost 100 years.

In the 1960s and 1970s, divorce was very common. As more women joined the movement for gender equality and more groups fought for fathers’ rights, an argument grew about what parents should do.

By that time, the Tender Years Doctrine was no longer relevant, so it was replaced with an unclear but broad set of rules. The judges chose what was “best for the child.” Fights over custody get rough and last a long time.

The best interest standard was good because it led to joint parenting arrangements. In the 1970s, people studying child development started to notice how gender roles were changing and how dads affected their kids. The first state was California who pass a law on shared custody in 1979. From 1991, almost 40 states had passed laws that let divorced parents share custody of their children. With these changes, the current legal system for child custody was made.

How does a court determine legal and physical custody?

Unless there is proof that one parent might put the child in danger, courts usually let both parents have legal care of the child. Concerns may include domestic violence, drug use, and other bad habits.

Most of the time, parents can agree on who gets custody without the court’s help. But the court usually looks at the child custody plan to make sure that neither parent forced, swayed, or did anything else wrong.

Almost all states decide who gets physical control based on what’s “best for the child.” When deciding who gets care of a child, the courts look at the following:

Child gender and age.
Parent and child health.
Before the divorce, each parent’s ability to guide and discipline the child.
Ability of each parent to provide food, shelter, clothing, and medical care.
What a giving custody to one parent will affect the child’s education, home, community, and religion.
Lifestyles of parents and risks to children.
Education effects of moving.
If the youngster is old enough, some governments let them choose. (Usually somewhere between 12 and 16).

As with formal custody, the courts like situations where both parents can help raise the child. If there are worries about domestic violence, child abuse, drug use, illegal activities, or other things that could put the child in danger, the court could give full physical custody to one parent. The parent who does not have custody can be denied visitation or have it watched.

What Laws Governs Child Custody?

Most of the time, state laws governing child custody are consistent across the US, except for Massachusetts and Puerto Rico. The Uniform Child Custody Jurisdiction and Enforcement Act , have adopted by the all other states, a model law developed in 1997.

In the United States, the states, not the federal government, decide who gets to keep the children following a divorce. Therefore, each of the 50 states as well as the capital of the District of Columbia, Washington, DC, has its own set of laws. Most laws are uniform throughout all states. When parents get a divorce, the decision about who gets the child should be based on what is best for the kid. Mothers and fathers must be treated the same, according to the law. Since they are different sexes, neither parent wants the kids to live with them immediately. Most states used the “Tender Years Doctrine” until the 1960s or 1970s. It said that if women were healthy, they could keep their children. After that, people in the United States had more equal rights at work and in divorce cases.

The two main ways to decide who gets to keep the child are “joint custody,” which is sometimes called “shared custody,” and “sole custody” with contact rights.

What are Joint Custody and Sole Custody in USA?

JOINT CUSTODY– If both parents have shared legal custody, they can both make important decisions for the child.1There are books about religion, health care, and schooling among these. Also, parents need to know that formal custody and physical custody are not the same thing. Co-parents can share formal custody, but they can’t share physical custody.

SOLE CUSTODY– When only one parent has physical custody and/or legal custody of a child after his or her parents have split up or divorced, this is called “sole custody.”

In the United States, the word “visitation” is often used to describe how hard it is to see a prisoner. Because people did not like the old terms, some state laws now call the time each parent spends with the kid “parenting time” instead of “sole custody” and “visitation.”

In a sole custody arrangement and contact plan, the non-custodial parent (the parent who does not have sole custody) and the child usually spend:

Every other weekend, usually from Friday night to Sunday night;
One Friday (usually dinner included);
50 percent of big holidays;
During the summer for a few weeks.

What if the parent or children want modification in custody decisions?

Changes can be made to who gets custody. When parents agree to change custody, U.S. courts almost always write an order that says so. Some parents decide to change who has care without going to court.

Courts try to find a middle ground between doing what is best for the child and making sure the child’s life stays the same, avoiding the stress and cost of lawsuits, and doing what is best for the child if a parent wishes to switch custody. (Such as taking up the role of the child’s primary caretaker.). In a disputed custody case, it is usually necessary to show that the situation has changed significantly since the last custody order and that changing custody is in the best interests of the child.

When custody might be changed are when a child keeps fighting with an unfriendly stepparent, wants to live with the noncustodial parent, or a custodial parent wants to move when the child has strong ties to his or her school, community, and noncustodial parent.

What are the children custody laws is the children born before marriage?

When deciding who gets custody of a child born outside of a marriage, the same rules apply as when deciding who gets custody of a child during a divorce. But for these rules to apply, the child’s fatherhood must first be proven. This can be done through an agreement between the parents (like putting the father’s name on the child’s birth certificate) or through a court decision. The mother always has the right to care until it can be proven who the father is.

After paternity has been proven, a court will decide who gets the child based on what is best for the kid. A court will look at the benefits of letting a breastfeeding baby stay with the child’s mother and the parent or parents who have been raising the child since birth until the custody hearing.

Brief About Some of The State Law In USA

[1]TEXAS

In Texas, a parent who is put in charge by the court is called a “conservator.” Conservators either “own” or “manage” something.

When a court decides who should take care of a child for the first time, it may decide that both parents should be Joint Managing Conservators. In joint oversight conservatorship orders, the parties or the judge must decide who gets what rights and tasks.

The court may also choose one or more “Possessory Conservators” and a “Sole Managing Conservator.” A parent’s past of domestic violence or lack of contact with the child can be considered by the judge when deciding rights and custody. The possessory conservator may not be able to make choices about the person’s health, education, or welfare. The only person in charge of a child’s care makes all decisions about his or her health, schooling, and moral or religious upbringing.

Parental rights and responsibilities are split up by conservatorship orders and the obligation to support the children financially after the split.

[2]NEW YORK

When getting a divorce in New York State, if there are children under 18 from the marriage, someone must ask for custody. Whether the parents are getting a divorce or are just living apart, one parent can’t demand that the child stay with them. Unless a demand is made, it may not be known where the children live when they are not in the care of New York State. No one other than the mother or father can get custody of a child, unless there are special circumstances that call for a review. In rare cases, a child may be given to a third party, like a grandparent or a brother. The Child Support Standards Act says that both parents must help support their children under the age of 18 to the extent that they are able.

What are the rights of grandparents with respect to children custody?

In Troxel v. Granville (2000)[3], the U.S. Supreme Court ruled that a child’s original parents can limit the amount of time their kids spend with their grandparents.

In the 2004 case in re [4]O’Donnell-Lamont, the Oregon Supreme Court upheld an Oregon law that sets up a presumption that the parent acts in the best interests of the child before following the best interests of the child criteria. This puts all parties on the same level. Under the fundamental right of the parent, the court upheld that there must be either a child-parent connection or a long-term personal relationship between the child and the non-blood-related intervenor. The court pointed out that the issue allowed for an intervenor with a good reason to step in, and the 14th Amendment’s Due Process Clause said that the parent’s fundamental right was being protected by the statute’s requirement that the parent first show the relationship, then show how the presumption was wrong, and finally judge the choice based on what was best for the child.

What Is the Difference Between Children Custody Laws in India and USA?

India and the United States have different laws about child custody because of differences in society, religion, and law. Here are a few important differences:

The United States has a common law legal system, which means that judges make choices based on what has happened in the past. India, on the other hand, has a mix of common law, civil law, and customary law in its legal system.

Divorce Laws: All 50 states in the US have “no-fault” divorce laws, which mean that a spouse can file for divorce without having to show that the other partner did something wrong. In India, on the other hand, divorce laws are based on personal rules that are based on religion, and it can be harder to get a divorce there.

Custody rules: In the US, custody rules are usually neutral when it comes to gender, and both parents have equal rights to custody. When deciding who gets custody, the court looks at what’s best for the kid. Things like the child’s age, health, and relationship with each parent are considered. In India, custody laws are built on the Hindu Minority and Guardianship Act, which says that the father is the child’s natural guardian and should be given preference. But if it is in the best interests of the child, the court can give custody to the mother.

Child support: In the US, the non-custodial parent usually has to pay child support, which is based on how much money each parent makes and what the child needs. In India, child support is not required, but the parent who has control of the child can be told to take care of the child’s needs by the court.

International Custody Disputes: If one parent takes a child to another country without the other parent’s permission, the US has signed the Hague Convention on the Civil Aspects of International Child Abduction, which provides a way to get the child back to their home country. India is also a signatory to the convention, but there have been times when Indian courts have failed to order the return of a child.

Overall, the custody rules of the US and India are similar in some ways, but there are also big differences due to the way the law is set up, cultural norms, and religious beliefs.

What are the Child Custody statistics of mothers and fathers get custody in the US?

Let us have some light on the percentage of grant of child custody.

In the US, states aim to provide equal custody time to each of the parents.

In 51% of custody cases, each of the parents agree that the mother should have custody.

In the USA, 65% are a female parent who granted custody whereas 35 % are a male parent receives custody, however it is found that in recent years with the percentage increasing from 16% in 1994 to 20.1% in 2020

CONCLUSION

In the United States, state laws, which change from state to state, decide who gets to care for a child. But in general, the courts make decisions based on what is best for the child. They consider things like the what is the relation of children with there each parent, the parents’ capability to meet the child’s physical, emotional, and educational needs, and any history of abuse or neglect.

Legal custody and physical custody are the two types of parenting. Legal custody means the right to make important choices about the child’s upbringing, such as about his or her education, religion, and medical care. Physical custody is where the child lives and who takes care of him or her every day.

The court can order several different kinds of child custody orders, such as:

Sole custody means that one parent oversees the child legally and physically.

Joint custody means that both parents have formal rights to the child and that the child spends a lot of time with both.

Each parent has physical care of one or more children on their own.

The non-custodial parent may also be given visitation rights, and in some situations, supervised visitation may be required.

Overall, the goal of custody rules in the United States is to make sure that the child’s best interests are met and that the child has a stable, loving place to grow and thrive.

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